The People of the State of Colorado, Plaintiff-Appellee, v. Sergio Aquiles-Castillo, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

OPINION is modified as follows:

Added footnote 1 on Page 8 reads:

In a petition for rehearing filed after our opinion issued, Aquiles-Castillo claimed that because the People had argued that the letter evidence was admissible as intrinsic evidence, our conclusion that it was admissible as extrinsic evidence under CRE 404(b) violated the party presentation principle.

Under the principle of party presentation, courts “rely on the parties to frame the issues for decision.” United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 1579 (2020). Therefore, courts should generally “decide only questions presented by the parties.” Galvan v. People, 2020 CO 82, ¶ 45 (quoting Sineneng-Smith, 590 U.S. at ___, 140 S. Ct. at 1579).

Here, we did not decide a question not presented by the parties; we decided the question Aquiles-Castillo asked us to resolve. In his opening brief, Aquiles-Castillo argued that the trial court erred because admissibility of the letter evidence should have been analyzed under CRE 404(b) and that, so analyzed, the evidence was inadmissible. We accepted his premise, reviewed the issue as raised by him, and concluded that he was wrong. Under these circumstances, there has been no departure from the party presentation principle.

Added footnote 2 on Pages 10 and 11 reads:

We also disagree that by reviewing for plain error, we have again run afoul of the party presentation principle. According to Aquiles-Castillo's petition for rehearing, we may not consider whether the court's failure to give a limiting instruction amounted to plain error because the People never argued that it did.

As an initial matter, we note that the People did argue that “a trial court's failure to give a limiting instruction sua sponte in the CRE 404(b) context is not reversible plain error” and cited a number of cases supporting that proposition.

But also, it was Aquiles-Castillo's burden to demonstrate that any error was plain. See People v. Carter, 2021 COA 29, ¶ 49. And Aquiles-Castillo has not cited any case that authorizes us to shift that burden to the People. Cf. James v. People, 2018 CO 72, ¶¶ 17-18 (explaining that the defendant has the burden to show that an error is plain whereas the government has the burden to show that an error is harmless). His reliance on People v. Jackson, 2020 CO 75, and Moody v. People, 159 P.3d 611 (Colo. 2007), is misplaced. In Jackson, the People did not contest that a double jeopardy violation would amount to plain error, an omission the supreme court construed as an “implicit concession.” Jackson, ¶ 60. Nonetheless, the supreme court “independently” determined that the error was plain. Id. at ¶ 61. And in Moody, the supreme court disapproved of the division's decision to address standing sua sponte because — as a result of the government's failure to raise standing “in the suppression hearing, at trial, or on appeal” — the defendant had no notice that he needed to create a sufficient factual record on that issue. Moody, 159 P.3d at 614, 616. Neither notice nor a deficient record is at issue here. In sum, our role on plain error review requires us to independently determine whether any error was obvious and so substantial that it undermined the reliability of the judgment. See Hagos v. People, 2012 CO 63, ¶ 14.

¶ 1 Defendant, Sergio Aquiles-Castillo, appeals the judgment of conviction entered after a jury found him guilty of one count of sexual assault on a child by one in a position of trust (SAOC-POT) and one count of SAOC-POT as part of a pattern of abuse (SAOCPOT-Pattern). The evidence underlying the jury's verdicts established that Aquiles-Castillo sexually assaulted his stepdaughter, K.P., on two occasions after she had fallen asleep — once in California, when she was about six or seven years old, and once in Colorado, when she was eleven.

¶ 2 On appeal, Aquiles-Castillo contends that the trial court committed reversible error by

• admitting evidence of prior uncharged misconduct and also failing to give a limiting instruction;

• admitting “victim impact” testimony;

• admitting expert testimony that impermissibly bolstered the victim's credibility, including testimony that the victim had not been coached;

• allowing prosecutorial misconduct during opening statement, K.P.’s testimony, and closing arguments;

• and entering a separate conviction and sentence for the SAOC-POT-Pattern count, which functioned solely as a sentence enhancer.

¶ 3 We agree that the court erred by entering two convictions and sentences, but we otherwise conclude that any errors identified by Aquiles-Castillo do not warrant reversal. Accordingly, we affirm the judgment as to SAOC-POT, vacate the conviction and sentence for SAOC-POT-Pattern, and remand the case to the trial court with instructions to correct the mittimus.

I. Uncharged Misconduct Evidence

¶ 4 Aquiles-Castillo contends that the trial court erred by admitting certain uncharged misconduct evidence under CRE 404(b): (1) testimony from K.P.’s older sister that Aquiles-Castillo had once sexually molested her while she slept and (2) evidence that Aquiles-Castillo pressured K.P.’s mother to “drop the charges” against him. And, he says, the court further erred by failing to give a limiting instruction in connection with this evidence.

A. Legal Principles and Standard of Review

¶ 5 CRE 404(b) prohibits the admission of uncharged misconduct evidence to prove a person's character and to show that the person acted in conformity with a character trait on a particular occasion. See CRE 404(b)(1). However, uncharged misconduct evidence may be admitted for nonpropensity purposes, such as proof of motive, lack of mistake, or a common scheme or plan. See CRE 404(b)(2). To be admissible, the evidence must satisfy a four-part test: (1) it must relate to a material fact; (2) it must be logically relevant; (3) its logical relevance must be independent of an impermissible propensity inference; and (4) its probative value must not be substantially outweighed by the risk of unfair prejudice. See People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).

¶ 6 Trial courts have substantial discretion to decide whether to admit evidence of prior uncharged misconduct. See Perez v. People, 2015 CO 45, ¶ 22. Thus, we will not disturb the trial court's decision unless it was manifestly arbitrary, unreasonable, or unfair. Id.

B. Sister's Testimony

¶ 7 At trial, K.P.’s older sister testified that when she was a child, Aquiles-Castillo had once put his hand in her pants and attempted to touch her “vagina area” after she had fallen asleep. The court, having earlier concluded that the evidence satisfied the four-part Spoto test, admitted the sister's testimony to show Aquiles-Castillo's “common plan, scheme, design, modus operandi,” motive, and lack of mistake or accident.

¶ 8 On appeal, Aquiles-Castillo challenges the court's ruling only with respect to Spoto’s fourth prong: he says that, under CRE 403, the probative value of the sister's testimony was substantially outweighed by the risk of unfair prejudice. See Spoto, 795 P.2d at 1318 (explaining that the fourth prong of the analysis calls for applying the CRE 403 balancing test).

¶ 9 CRE 403 “strongly favors the admission of evidence.” People v. Dominguez, 2019 COA 78, ¶ 29. Therefore, a reviewing court must “afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected.” People v. Elmarr, 2015 CO 53, ¶ 44 (citation omitted).

¶ 10 Aquiles-Castillo argues that the sister's testimony had “scant probative value” because her allegation was vague as to the specific timing of the sexual abuse and the precise point of contact. We disagree. The sister testified that when she was a child (between eight and twelve years old), she and a younger sister were home alone in the duplex where she lived with her family in California. The sisters were asleep on a couch in the living room when Aquiles-Castillo came in. He put his hand in her pants and tried to touch her “vagina area.” The sister woke up, grabbed the younger sister, and retreated to her bedroom.

¶ 11 That testimony was sufficiently specific to have substantial probative value. The prior incident tended to show that Aquiles-Castillo had a plan or scheme to sexually abuse his young stepdaughters and that he used a modus operandi of committing the acts while they slept. Thus, the evidence made it more likely that he had committed the charged acts against K.P. and less likely that K.P. had fabricated the allegations, as Aquiles-Castillo argued at trial. See People v. Heredia-Cobos, 2017 COA 130, ¶ 34. “Given that [K.P.]’s testimony was the only direct evidence of defendant's guilt,” the sister's testimony “was especially relevant.” Id. at ¶ 39; see also People v. Whitlock, 2014 COA 162, ¶ 14 (In the context of a CRE 403 balancing analysis, “ ‘probative value’ ․ signifies the ‘marginal’ or ‘incremental’ ․ value of evidence relative to other evidence in the case.” (quoting People v. Saiz, 32 P.3d 441, 446 (Colo. 2001))).

¶ 12 And though the testimony was prejudicial to Aquiles-Castillo, it was not unfairly so. See People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990) (noting that evidence is not “unfairly prejudicial simply because it damages the defendant's case,” but rather because it has “an undue tendency to suggest a decision on an improper basis, ․ such as sympathy, hatred, contempt, retribution, or horror”). The sister's allegations were not “qualitatively different, more severe, [or] more inflammatory” than K.P.’s allegations, People v. Brown, 2014 COA 130M, ¶ 22, and, therefore, the evidence was not likely to “unduly inflame the passions of the jury” as it considered the charges against Aquiles-Castillo, People v. Cross, 2023 COA 24, ¶ 26. See also Heredia-Cobos, ¶¶ 35, 37-39 (probative value of evidence that “defendant sexually assaulted female family members, and did so in similar ways,” was not outweighed by risk of unfair prejudice); People v. Mata, 56 P.3d 1169, 1173-74 (Colo. App. 2002) (probative value of evidence that the defendant digitally penetrated and fondled his daughter on multiple occasions, which was admitted to show intent and to refute a defense of fabrication by the victim, was not outweighed by danger of unfair prejudice).

C. The Letter Evidence

¶ 13 At trial, K.P.’s mother testified that after Aquiles-Castillo's arrest, he wrote a letter to the court requesting that the charges be dropped, and then he asked mother to sign it. Mother said she agreed to sign the letter because Aquiles-Castillo was “harassing” her, including by threatening to “fight [the charges] until he saw the girls being led out of court in handcuffs.” The letter was admitted into evidence over Aquiles-Castillo's objection.

¶ 14 The parties dispute whether evidence related to the letter constitutes intrinsic or extrinsic evidence, see Rojas v. People, 2022 CO 8, ¶ 52 (explaining the difference between intrinsic and extrinsic evidence), but we need not resolve that dispute because, even assuming the letter evidence is extrinsic to the charges, we conclude that the court properly admitted it under CRE 404(b), see, e.g., People v. Medina, 51 P.3d 1006, 1012-13 (Colo. App. 2001) (evidence is admissible under CRE 404(b) to show consciousness of guilt), aff'd sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003).¹

¶ 15 Aquiles-Castillo concedes that evidence of consciousness of guilt is generally deemed relevant, but he says that the letter (and mother's testimony) was irrelevant under Spoto’s second prong because the evidence was equally consistent with innocence. We disagree. Attempts to “convince a witness to drop charges are evidence of consciousness of guilt.” People v. Valera-Castillo, 2021 COA 91, ¶ 39 n.8; see also 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4.4 (4th ed. 2022) (“Proof that after the charged crime the accused acted in ways apparently calculated to avoid ․ prosecution[ ] or conviction suggests a guilty mind ․”); cf. People v. Samuels, 228 P.3d 229, 245 (Colo. App. 2009) (“It is well established that evidence of threats against a witness is relevant to show consciousness of guilt.”).

¶ 16 Because we conclude that the evidence is relevant, and we therefore must afford it its maximum possible probative value, we also disagree with Aquiles-Castillo that the evidence should have been excluded as unduly prejudicial. The jury could have inferred a consciousness of guilt from the letter evidence, which then permitted the additional inference that Aquiles-Castillo committed the charged offense. See People v. Gee, 2015 COA 151, ¶ 26 (“[F]rom a guilty mind, guilt itself may be inferred.” (quoting People v. Summitt, 132 P.3d 320, 324 (Colo. 2006))). And given that K.P.’s testimony was the only direct evidence of guilt, the letter evidence added considerable weight to the prosecution's case. See Heredia-Cobos, ¶ 37. As for potential prejudice, we see little risk that in a case involving allegations of sexual assault on a child, the jury would convict in order to punish the defendant for witness tampering. Cf. Brown, ¶¶ 12, 22-23 (where the uncharged misconduct evidence is more inflammatory than the evidence of the charged offense, there is a substantial risk that the “tail might well wag the dog,” meaning the jury will convict to punish the defendant for the uncharged misconduct (quoting Edward J. Imwinkelreid, Uncharged Misconduct Evidence § 8:24 (2013))).

D. Failure to Give Limiting Instructions

¶ 17 Aquiles-Castillo also contends that even if the sister's testimony and the letter evidence were properly admitted, the court erred by failing to give a limiting instruction regarding the proper use of that evidence. We conclude that any error was not plain. See People v. Underwood, 53 P.3d 765, 772 (Colo. App. 2002) (holding that in the absence of a request, the trial court's failure to give a limiting instruction pursuant to section 16-10-301, C.R.S. 2022, or CRE 404(b) is reviewed for plain error and collecting cases).²

¶ 18 First, the failure to give a limiting instruction is not inherently prejudicial. Defendants frequently forgo an instruction to avoid highlighting damaging evidence. See People v. Gladney, 194 Colo. 68, 72, 570 P.2d 231, 234 (1977) (“Defense counsel, for strategic or tactical reasons, may consider that [a limiting] instruction would be more harmful than beneficial.”). Second, the risk that the jury misused the evidence is low. The sister's testimony was admitted for multiple proper purposes, including to show Aquiles-Castillo's modus operandi and his pattern of conduct as part of a common plan and scheme to sexually abuse his stepdaughters as they slept. Because the evidence was so obviously relevant for these legitimate purposes, there is little danger that the jury relied on the prohibited inference that Aquiles-Castillo had acted in conformity with his bad character generally. See People v. Griffin, 224 P.3d 292, 299-300 (Colo. App. 2009). That same reasoning applies with respect to the letter evidence. It seems exceedingly unlikely that the jury would have found the letter relevant for any purpose other than to demonstrate consciousness of guilt. Third, the sister's testimony was brief and the conduct she described was not more serious than the charged conduct. See Underwood, 53 P.3d at 771. And fourth, the evidence of guilt was strong. In addition to K.P.’s testimony, which was fairly supported in some respects by the expert's testimony, the prosecution presented evidence that Aquiles-Castillo had sexually abused another stepdaughter and had tampered with a witness in an effort to avoid prosecution.

¶ 19 In sum, we conclude that the court properly admitted the uncharged misconduct evidence and that the failure to give a limiting instruction does not amount to plain error warranting reversal.

II. Victim Impact Testimony

¶ 20 After K.P. disclosed the abuse to her mother and then to the police, she participated in a forensic interview. At trial, the forensic interviewer, who was also qualified as an expert in the dynamics of child sexual assault, testified that child victims may dress more modestly and may become depressed or suicidal after the sexual assault.

¶ 21 K.P. testified that after Aquiles-Castillo sexually assaulted her, she dressed in baggy clothes to “cover [her] whole body.” She said that she “felt gross,” “was depressed,” and thought that the only way to “get rid of him” was to commit suicide. She made similar statements during the forensic interview that was played for the jury: she told the interviewer that after the assaults, she felt “depressed” and considered suicide.

¶ 22 On appeal, Aquiles-Castillo contends that K.P.’s statements about her emotional response to the assaults should have been excluded as irrelevant “victim impact” evidence. We are not persuaded.

¶ 23 “Victim impact evidence is evidence that relates to ‘the victim's personal characteristics and to the physical, emotional, or social impact of a crime on its victim and the victim's family.’ ” People v. Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010 WY 45, ¶ 22). Victim impact evidence is admissible at trial only when it is “relevant to determining whether the defendant committed the [charged] crime.” Id. at ¶ 33.

¶ 24 In Martinez, the defendant was charged with sexually assaulting a woman who was highly intoxicated. The “case rested on a single factual dispute — whether [the defendant] had known that [the victim] was too intoxicated to consent to sex.” Id. at ¶ 5. The division concluded that the victim impact testimony — that following the assault, the victim missed work, felt depressed, and considered suicide — was irrelevant because it did not tend to prove whether the defendant had acted with the requisite knowledge. Id. at ¶ 40.

¶ 25 But here, the central factual dispute was whether the assault happened at all. Once the expert testified about children's common responses to sexual assault, evidence of K.P.’s behavioral and mood changes was relevant to show that she had been sexually assaulted. See, e.g., People v. Clark, 2015 COA 44, ¶ 17 (evidence is relevant when the evidence makes it more probable that a criminal act occurred); see also Petersen v. State, 326 So. 3d 535, 594-95 (Ala. Crim. App. 2019) (victim impact evidence was admissible at trial because evidence established extent of victim's injuries and was therefore “relevant to a material issue of the guilt phase”) (citation omitted).

¶ 26 Nor was the probative value of the evidence substantially outweighed by the danger of unfair prejudice. The crux of Aquiles-Castillo's argument is that the victim impact testimony was likely to have elicited sympathy for K.P. But exclusion of evidence is not warranted any time the evidence might make a victim seem more sympathetic — after all, much of a child victim's testimony in a sexual assault case is likely to elicit some sympathy from the jury. To warrant exclusion, the evidence must have “an undue tendency ․ to suggest a decision on an improper basis.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002) (citation omitted). We cannot say that K.P.’s brief and somewhat unremarkable testimony about the impacts of the sexual assaults would have led a reasonable jury to base its verdict on improper considerations.

III. “Coaching” Testimony

¶ 27 Next, Aquiles-Castillo contends that the court erred by allowing the forensic interviewer to testify in a way that impermissibly bolstered K.P.’s credibility. We agree that certain testimony was inadmissible, but we discern no plain error. See People v. Pollard, 2013 COA 31M, ¶ 22 (when defendant fails to object to the admission of evidence at trial, plain error standard of review applies).

A. The Expert's Testimony

¶ 28 On direct examination, the forensic interviewer, who also provided generalized expert testimony, testified that she had been trained to recognize signs that a child had been coached in making allegations. That testimony prompted the following exchange:

[PROSECUTOR]: Based on your training and experience, did you have any impressions regarding whether [K.P.] had been coached?

[EXPERT WITNESS]: No. At one point [K.P.] had talked about talking to her mom about coming to [the child advocacy center], so I asked follow-up questions about that conversation with her, and what she told me was that her mom just told her to talk about her experiences that she had and to be honest with me in those experiences.

¶ 29 On cross-examination, defense counsel asked about the coaching testimony, and the expert clarified that she was “not saying that in this particular case [K.P.] wasn't coached,” but rather that she did not see any “flags” during the interview.

¶ 30 On redirect, the expert testified that K.P. had “complete[d] th[e] forensic interview ․ in a manner consistent with a child her age,” meaning that she had used age-appropriate language and provided an age-appropriate level of detail in her “story.”

¶ 31 On recross, defense counsel asked, “ ‘Consistent with her age’ doesn't mean that you necessarily believe she was telling the truth, correct?” The trial court intervened and disallowed the question on the ground that the expert could not comment on the victim's credibility. The trial court then instructed the jurors that it was their job to evaluate each witness's credibility:

I want to remind the jury and instruct the jury that as jurors, you are the sole judges of the credibility of a witness, and you're not to consider any type of expert testimony in terms of whether a witness may have told the truth or not told the truth. That's not proper for an expert to render an opinion on, and no such opinion has been rendered with regard to that in this case.

B. Analysis

¶ 32 Aquiles-Castillo argues that the expert impermissibly vouched for K.P.’s credibility when she opined that K.P. had not been coached and that the manner in which K.P. completed the interview was age appropriate.

¶ 33 A witness may not testify that a child victim told the truth on a particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32. “This rule applies to both direct and indirect implications of a child's truthfulness.” Id.

¶ 34 Therefore, an expert witness may not opine as to whether a child has been coached, because that testimony “constitute[s] conclusions about [the child's] truthfulness in [her] ․ interview[ ].” People v. Bridges, 2014 COA 65, ¶ 16. And contrary to the People's position, we see no meaningful distinction between testimony that a child has not been coached and testimony that a child did not show signs of being coached. As the division in Heredia-Cobos explained, that “subtle distinction” is “likely to be lost on ordinary jurors,” who are likely to glean from either statement that “the interviewer believed the child hadn't been coached.” Heredia-Cobos, ¶ 17. Thus, while the expert did not explicitly say that K.P. told the truth during the interview, her testimony that she did not see any signs of coaching “conveyed the impression that she thought [K.P.] was being truthful.” Id. at ¶ 16.

¶ 35 Admission of the testimony was error, and the error was obvious. See Pollard, ¶ 40 (an error is obvious if it contravenes Colorado case law). But to warrant reversal, the error must also be so prejudicial that it casts serious doubt on the reliability of the judgment. Id. at ¶ 43. The error in admitting the “coaching” testimony does not satisfy that high standard.

¶ 36 First, the expert clarified that she could not say whether K.P. had been coached. Second, during the expert's testimony, the trial court instructed the jury that an expert cannot opine that another witness has told the truth, it emphasized that the expert had not done so, and it reminded the jurors that evaluating the credibility of the witnesses was their job alone. Third, because K.P. testified and her forensic interview was admitted, the jury could evaluate her credibility “firsthand.” People in Interest of J.R., 2021 COA 81, ¶ 36 (citation omitted) (error in admitting expert testimony bolstering child witness's credibility was mitigated because the jury could evaluate the child's credibility for itself). Fourth, the prosecution did not mention the expert's coaching testimony again during the trial. See People v. Relaford, 2016 COA 99, ¶ 43 (whether improper admission of expert testimony constitutes plain error depends in substantial part on whether the prosecution relied on that testimony in closing arguments). And finally, as we have noted, the evidence of guilt was strong. Id.

¶ 37 We reach a slightly different conclusion with respect to the expert's testimony that K.P. told her “story” in an age-appropriate manner. Aquiles-Castillo does not cite to any Colorado case that disapproves of such testimony and our research has not uncovered one. Other courts permit some variation of this testimony. See United States v. Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (court properly admitted expert testimony that a child's use of age-appropriate language is relevant in determining whether the child has been sexually abused); State v. Huffman, 871 N.W.2d 703, 2015 WL 5278980, at *6 (Iowa Ct. App. Sept. 10, 2015) (unpublished table decision) (trial court properly admitted expert testimony that the child victims used “developmentally appropriate language” in describing the allegations); State v. Lupoli, 234 P.3d 117, 125 (Or. 2010) (testimony that “what [the victim] said was developmentally appropriate for her age is the kind of expert opinion that can assist a jury and ordinarily would be admissible”). Even assuming the testimony was inadmissible, any error in admitting it was not obvious. Therefore, any error was not plain. See Griffin, 224 P.3d at 299 (if error is not obvious, it is not plain, regardless of whether it was prejudicial).

¶ 38 For these reasons, we conclude that the trial court did not plainly err by admitting the challenged testimony.

IV. Prosecutorial Misconduct

A. Standard of Review

¶ 39 We evaluate prosecutorial misconduct claims under the familiar two-step framework: we determine first whether the challenged conduct was improper and second whether any misconduct warrants reversal under the applicable standard of review. See Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). Because defense counsel did not object to any of the challenged conduct, we review for plain error. Id.

B. Opening Statement

¶ 40 During opening statement, the prosecutor repeatedly referred to K.P. as a “little girl” — for example, by telling the jury that she had been keeping secrets in “her little girl heart” for many years about how Aquiles-Castillo had “violate[d] her little girl body” through the acts of sexual abuse. The prosecutor then highlighted the difference between K.P.’s status as a young child and Aquiles-Castillo's status as a grown man, commenting that during one incident, Aquiles-Castillo “put his grown-up man fingers on and around her eight-year-old vagina when [K.P.] was sleeping,” and during the other incident, put his “big adult man hand ․ around her little ten-year-old hand” on his penis and “mov[ed] her little girl hand up and down.”

¶ 41 Aquiles-Castillo contends that the “only possible purpose” for the statements was to “inflame the passions of the jury” and elicit sympathy for K.P.

¶ 42 Prosecutors may not use tactics “calculated to inflame the passions or prejudice of the jury.” People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999). However, a prosecutor may use a rhetorical device or oratorical embellishment to highlight evidence that will later be adduced at trial. See People v. Manyik, 2016 COA 42, ¶¶ 26-27.

¶ 43 We cannot say that the prosecutor's comments constituted misconduct. Given that K.P. was sixteen years old at the time of trial, the prosecutor could legitimately remind the jury that the sexual abuse occurred when she was much younger. Her young age also helped to explain why she had not disclosed the abuse until later. See People v. Vialpando, 2022 CO 28, ¶ 21 (whether prosecutor's comments constitute misconduct depends on the language used, the nature of the charges and asserted defenses, and the issues to be determined). And while some of the prosecutor's language may have been overly dramatic, it largely mirrored language K.P. herself used to describe the abuse — for example, she testified that she was “sure [Aquiles-Castillo] was touching [her]” because she recalled that his hands “were just, like, thick and heavy, like man hands.” In this way, the prosecutor's comments merely foreshadowed the evidence.

¶ 44 But we agree that the prosecutor briefly crossed the line at the end of her opening statement when she told the jurors that by returning a guilty verdict, they would “do[ ] justice in this courtroom for [K.P.] and for the people of Colorado.” “Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim.” People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009). But even assuming the misconduct was obvious, the single comment did not render the trial fundamentally unfair. See, e.g., People v. Conyac, 2014 COA 8M, ¶¶ 129-130 (prosecutor's request to do “justice for [the victim]” did not constitute plain error); People v. Ujaama, 2012 COA 36, ¶¶ 73-74 (prosecutor's comment that the “only way to obtain justice in this courtroom ․ is to find [defendant] guilty” did not amount to plain error); see also People v. Carian, 2017 COA 106, ¶ 58 (improper comments during opening statement did not constitute plain error because they were “fleeting relative to the argument as a whole and in light of all the evidence the jury heard after opening statements”).

C. K.P.’s Testimony

¶ 45 At the beginning of her testimony, K.P. started to cry. The prosecutor approached the witness stand, offered some encouraging words, and then made a tapping gesture on K.P.’s forehead. A few minutes later, defense counsel objected to the prosecutor's leading questions and to her earlier gesture and asked the court to order the prosecutor to “knock all that off.” The trial court agreed that the “touch on the forehead was inappropriate” and admonished the prosecutor “to refrain from doing anything like that again.” Defense counsel did not seek any further relief.

¶ 46 Shortly thereafter, the prosecutor acknowledged K.P.’s nervousness and asked her, “[W]hat did I tell you you needed to do today — the only thing you needed to do?” K.P. replied, “Say the truth.”

¶ 47 Aquiles-Castillo now argues that he is entitled to a new trial based on the prosecutor's improper “bonding” gesture. But he has waived that argument because he objected to the misconduct, the court effectively sustained the objection, and he obtained all the relief he requested. See People v. Manzanares, 2020 COA 140M, ¶ 16 (defendant waived claim where counsel objected to the error, “agreed to the trial court's curative procedure and requested nothing further”); People v. Douglas, 2012 COA 57, ¶ 65 (defendant waived claim of prosecutorial misconduct where he objected to the comments, the trial court sustained the objection, and he requested no further relief).

¶ 48 As for the prosecutor's question eliciting K.P.’s testimony that she had agreed to tell the truth, we see no impropriety. The question “merely elicited testimony from the victim about the truthfulness of her own testimony, which does not constitute bolstering.” People v. West, 2019 COA 131, ¶ 42.

D. Closing Argument

¶ 49 During closing argument, the prosecutor said that Aquiles-Castillo had treated K.P. and her sister “like garbage,” “like animals,” and “like pieces of meat.” The prosecutor told the jury that he had written down the word “predator,” and although he did not know whether the word was “entirely accurate,” Aquiles-Castillo had “certainly behav[ed] in a terrible, terrible way.”

¶ 50 Later, the prosecutor argued that Aquiles-Castillo was “guilty” of the crimes, and that the jury should return a guilty verdict “because [Aquiles-Castillo] did it” — the sexual assault “happened here in Colorado,” and “it happened before that in California.”

¶ 51 Aquiles-Castillo contends that the prosecutor engaged in improper name-calling and expressed his personal belief in Aquiles-Castillo's guilt.

¶ 52 True, prosecutors should avoid “ ‘pejoratives’ that amount to no more than ‘name calling.’ ” McBride, 228 P.3d at 222 (citation omitted). But with the exception of his use of the term “predator,” the prosecutor did not call Aquiles-Castillo any names; rather, he used harsh language to describe Aquiles-Castillo's treatment of his stepdaughters. Even assuming these comments were improper, they were not flagrantly, glaringly, or tremendously so. See People v. Rhea, 2014 COA 60, ¶ 43; see also United States v. Rodriguez-Estrada, 877 F.2d 153, 159 (1st Cir. 1989) (A criminal trial “is not a tea party,” and a defendant is not entitled to a “prosecutorial summing-up confined to platitudes and euphemisms.”) (citation omitted). The prosecutor's point was that Aquiles-Castillo had grossly mistreated the sisters, a conclusion that the evidence supported. His use of over-the-top language in a couple of sentences to make that point was unlikely to have affected the verdict, much less cast serious doubt on its reliability. See Hagos v. People, 2012 CO 63, ¶ 14.

¶ 53 We perceive nothing improper about the prosecutor's other comments, though. A prosecutor may not offer a personal opinion about the defendant's guilt. Vialpando, ¶ 42. But in context, it is clear that the prosecutor was not expressing his personal opinion that Aquiles-Castillo was guilty. He was arguing, in perhaps an inartful way, that the evidence demonstrated that Aquiles-Castillo was guilty. The challenged comments were interspersed in the prosecutor's recitation of the evidence and his explanation as to why the evidence was credible. But even if the remarks were ambiguous, we must give the prosecutor the benefit of the doubt. See McBride, 228 P.3d at 221.

¶ 54 Accordingly, even assuming the prosecutor twice made improper comments, the misconduct does not warrant reversal of Aquiles-Castillo's convictions.

V. Cumulative Error

¶ 55 Under the cumulative error doctrine, “numerous formal irregularities, each of which in itself might be deemed harmless, may in the aggregate show the absence of a fair trial, in which event a reversal would be required.” Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446 (1962).

¶ 56 We reject Aquiles-Castillo's argument that his conviction must be reversed based on cumulative error. “For reversal to occur based on cumulative error, a reviewing court must identify multiple errors that collectively prejudice[d]” the defendant's substantial rights. Howard-Walker v. People, 2019 CO 69, ¶ 25.

¶ 57 Though we have identified and assumed a few errors, these errors, even in combination, did not prejudice Aquiles-Castillo's substantial rights, render the trial fundamentally unfair, or undermine the integrity of the factfinding process. See id. at ¶ 24.

VI. Double Jeopardy

¶ 58 Aquiles-Castillo was charged with and convicted of one count of SAOC-POT and one count of SAOC-POT-Pattern. The prosecution concedes that both counts refer to the same offense, with the pattern count serving solely as a sentence enhancer. See People v. Simon, 266 P.3d 1099, 1108 (Colo. 2011) (explaining that SAOC-POT-Pattern is a sentence enhancer, not an offense). Because “[t]rial courts may not enter a separate conviction or sentence on a count that is only a sentence enhancer,” we agree with the parties that Aquiles-Castillo's judgment of conviction for SAOC-POT-Pattern must be vacated. People v. Torrez, 2013 COA 37, ¶ 23; see also People v. Wiseman, 2017 COA 49M, ¶¶ 9-14 (concluding that where defendant was charged with two counts of SAOC-POT and two counts of SAOC-POT-Pattern, the defendant could only be convicted of the two SAOC-POT offenses with the pattern charges serving as sentence enhancers).

VII. Disposition

¶ 59 The judgment as to SAOC-POT (a class 3 felony) is affirmed. The conviction and sentence for SAOC-POT-Pattern is vacated, and the case is remanded with instructions to correct the mittimus.

20CA0486 Peo v Aquiles-Castillo 05-04-2023

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0486

Garfield County District Court No. 17CR531 Honorable John F. Neiley, Judge

The People of the State of Colorado, Plaintiff-Appellee,

v.

Sergio Aquiles-Castillo, Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE HARRIS

Grove and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced May 4, 2023

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

¶ 1 Defendant, Sergio Aquiles-Castillo, appeals the judgment of conviction entered after a jury found him guilty of one count of sexual assault on a child by one in a position of trust (SAOC-POT) and one count of SAOC-POT as part of a pattern of abuse (SAOCPOT-Pattern). The evidence underlying the jury's verdicts established that Aquiles-Castillo sexually assaulted his stepdaughter, K.P., on two occasions after she had fallen asleep — once in California, when she was about six or seven years old, and once in Colorado, when she was eleven.

¶ 2 On appeal, Aquiles-Castillo contends that the trial court committed reversible error by

• admitting evidence of prior uncharged misconduct and also failing to give a limiting instruction;

• admitting “victim impact” testimony;

• admitting expert testimony that impermissibly bolstered the victim's credibility, including testimony that the victim had not been coached;

• allowing misconduct during opening statement, K.P.’s testimony, and closing arguments; and

• entering a separate conviction and sentence for the SAOC-POT-Pattern count, which functioned solely as a sentence enhancer.

¶ 3 We agree that the court erred by entering two convictions and sentences, but we otherwise conclude that any errors identified by Aquiles-Castillo do not warrant reversal. Accordingly, we affirm the judgment as to SAOC-POT, vacate the conviction and sentence for SAOC-POT-Pattern, and remand the case to the trial court with instructions to correct the mittimus.

I. Uncharged Misconduct Evidence

¶ 4 Aquiles-Castillo contends that the trial court erred by admitting certain uncharged misconduct evidence under CRE 404(b): (1) testimony from K.P.’s older sister that Aquiles-Castillo had once sexually molested her while she slept and (2) evidence that Aquiles-Castillo pressured K.P.’s mother to “drop the charges” against him. And, he says, the court further erred by failing to give a limiting instruction in connection with this evidence.

A. Legal Principles and Standard of Review

¶ 5 CRE 404(b) prohibits the admission of uncharged misconduct evidence to prove a person's character and to show that the person acted in conformity with a character trait on a particular occasion. See CRE 404(b)(1). However, uncharged misconduct evidence may be admitted for nonpropensity purposes, such as proof of motive, lack of mistake, or a common scheme or plan. See CRE 404(b)(2). To be admissible, the evidence must satisfy a four-part test: (1) it must relate to a material fact; (2) it must be logically relevant; (3) its logical relevance must be independent of an impermissible propensity inference; and (4) its probative value must not be substantially outweighed by the risk of unfair prejudice. See People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).

¶ 6 Trial courts have substantial discretion to decide whether to admit evidence of prior uncharged misconduct. See Perez v. People, 2015 CO 45, ¶ 22. Thus, we will not disturb the trial court's decision unless it was manifestly arbitrary, unreasonable, or unfair. Id.

B. Sister's Testimony

¶ 7 At trial, K.P.’s older sister testified that when she was a child, Aquiles-Castillo had once put his hand in her pants and attempted to touch her “vagina area” after she had fallen asleep. The court, having earlier concluded that the evidence satisfied the four-part Spoto test, admitted the sister's testimony to show Aquiles-Castillo's “common plan, scheme, design, modus operandi,” motive, and lack of mistake or accident.

¶ 8 On appeal, Aquiles-Castillo challenges the court's ruling only with respect to Spoto’s fourth prong: he says that, under CRE 403, the probative value of the sister's testimony was substantially outweighed by the risk of unfair prejudice. See Spoto, 795 P.2d at 1318 (explaining that the fourth prong of the analysis calls for applying the CRE 403 balancing test).

¶ 9 CRE 403 “strongly favors the admission of evidence.” People v. Dominguez, 2019 COA 78, ¶ 29. Therefore, a reviewing court must “afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected.” People v. Elmarr, 2015 CO 53, ¶ 44 (citation omitted).

¶ 10 Aquiles-Castillo argues that the sister's testimony had “scant probative value” because her allegation was vague as to the specific timing of the sexual abuse and the precise point of contact. We disagree. The sister testified that when she was a child (between eight and twelve years old), she and a younger sister were home alone in the duplex where she lived with her family in California. The sisters were asleep on a couch in the living room when Aquiles-Castillo came in. He put his hand in her pants and tried to touch her “vagina area.” The sister woke up, grabbed the younger sister, and retreated to her bedroom.

¶ 11 That testimony was sufficiently specific to have substantial probative value. The prior incident tended to show that Aquiles-Castillo had a plan or scheme to sexually abuse his young stepdaughters and that he used a modus operandi of committing the acts while they slept. Thus, the evidence made it more likely that he had committed the charged acts against K.P. and less likely that K.P. had fabricated the allegations, as Aquiles-Castillo argued at trial. See People v. Heredia-Cobos, 2017 COA 130, ¶ 34. “Given that [K.P.]’s testimony was the only direct evidence of defendant's guilt,” the sister's testimony “was especially relevant.” Id. at ¶ 39; see also People v. Whitlock, 2014 COA 162, ¶ 14 (In the context of a CRE 403 balancing analysis, “ ‘probative value’ ․ signifies the ‘marginal’ or ‘incremental’ ․ value of evidence relative to other evidence in the case.” (quoting People v. Saiz, 32 P.3d 441, 446 (Colo. 2001))).

¶ 12 And though the testimony was prejudicial to Aquiles-Castillo, it was not unfairly so. See People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990) (noting that evidence is not “unfairly prejudicial simply because it damages the defendant's case,” but rather because it has “an undue tendency to suggest a decision on an improper basis, ․ such as sympathy, hatred, contempt, retribution, or horror”). The sister's allegations were not “qualitatively different, more severe, [or] more inflammatory” than K.P.’s allegations, People v. Brown, 2014 COA 130M, ¶ 22, and, therefore, the evidence was not likely to “unduly inflame the passions of the jury” as it considered the charges against Aquiles-Castillo, People v. Cross, 2023 COA 24, ¶ 26. See also Heredia-Cobos, ¶¶ 35, 37-39 (probative value of evidence that “defendant sexually assaulted female family members, and did so in similar ways,” was not outweighed by risk of unfair prejudice); People v. Mata, 56 P.3d 1169, 1173-74 (Colo. App. 2002) (probative value of evidence that the defendant digitally penetrated and fondled his daughter on multiple occasions, which was admitted to show intent and to refute a defense of fabrication by the victim, was not outweighed by danger of unfair prejudice).

C. The Letter Evidence

¶ 13 At trial, K.P.’s mother testified that after Aquiles-Castillo's arrest, he wrote a letter to the court requesting that the charges be dropped, and then he asked mother to sign it. Mother said she agreed to sign the letter because Aquiles-Castillo was “harassing” her, including by threatening to “fight [the charges] until he saw the girls being led out of court in handcuffs.” The letter was admitted into evidence over Aquiles-Castillo's objection.

¶ 14 The parties dispute whether evidence related to the letter constitutes intrinsic or extrinsic evidence, see Rojas v. People, 2022 CO 8, ¶ 52 (explaining the difference between intrinsic and extrinsic evidence), but we need not resolve that dispute because, even assuming the letter evidence is extrinsic to the charges, we conclude that the court properly admitted it under CRE 404(b), see, e.g., People v. Medina, 51 P.3d 1006, 1012-13 (Colo. App. 2001) (evidence is admissible under CRE 404(b) to show consciousness of guilt), aff'd sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003).

¶ 15 Aquiles-Castillo concedes that evidence of consciousness of guilt is generally deemed relevant, but he says that the letter (and mother's testimony) was irrelevant under Spoto’s second prong because the evidence was equally consistent with innocence. We disagree. Attempts to “convince a witness to drop charges are evidence of consciousness of guilt.” People v. Valera-Castillo, 2021 COA 91, ¶ 39 n.8; see also 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4.4 (4th ed. 2022) (“Proof that after the charged crime the accused acted in ways apparently calculated to avoid ․ prosecution[ ] or conviction suggests a guilty mind ․”); cf. People v. Samuels, 228 P.3d 229, 245 (Colo. App. 2009) (“It is well established that evidence of threats against a witness is relevant to show consciousness of guilt.”).

¶ 16 Because we conclude that the evidence is relevant, and we therefore must afford it its maximum possible probative value, we also disagree with Aquiles-Castillo that the evidence should have been excluded as unduly prejudicial. The jury could have inferred a consciousness of guilt from the letter evidence, which then permitted the additional inference that Aquiles-Castillo committed the charged offense. See People v. Gee, 2015 COA 151, ¶ 26 (“[F]rom a guilty mind, guilt itself may be inferred.” (quoting People v. Summitt, 132 P.3d 320, 324 (Colo. 2006))). And given that K.P.’s testimony was the only direct evidence of guilt, the letter evidence added considerable weight to the prosecution's case. See Heredia-Cobos, ¶ 37. As for potential prejudice, we see little risk that in a case involving allegations of sexual assault on a child, the jury would convict in order to punish the defendant for witness tampering. Cf. Brown, ¶¶ 12, 22-23 (where the uncharged misconduct evidence is more inflammatory than the evidence of the charged offense, there is a substantial risk that the “tail might well wag the dog,” meaning the jury will convict to punish the defendant for the uncharged misconduct (quoting Edward J. Imwinkelreid, Uncharged Misconduct Evidence § 8:24 (2013))).

D. Failure to Give Limiting Instructions

¶ 17 Aquiles-Castillo also contends that even if the sister's testimony and the letter evidence were properly admitted, the court erred by failing to give a limiting instruction regarding the proper use of that evidence. We conclude that any error was not plain. See People v. Underwood, 53 P.3d 765, 772 (Colo. App. 2002) (holding that in the absence of a request, the trial court's failure to give a limiting instruction pursuant to section 16-10-301, C.R.S. 2022, or CRE 404(b) is reviewed for plain error and collecting cases).

¶ 18 First, the failure to give a limiting instruction is not inherently prejudicial. Defendants frequently forgo an instruction to avoid highlighting damaging evidence. See People v. Gladney, 194 Colo. 68, 72, 570 P.2d 231, 234 (1977) (“Defense counsel, for strategic or tactical reasons, may consider that [a limiting] instruction would be more harmful than beneficial.”). Second, the risk that the jury misused the evidence is low. The sister's testimony was admitted for multiple proper purposes, including to show Aquiles-Castillo's modus operandi and his pattern of conduct as part of a common plan and scheme to sexually abuse his stepdaughters as they slept. Because the evidence was so obviously relevant for these legitimate purposes, there is little danger that the jury relied on the prohibited inference that Aquiles-Castillo had acted in conformity with his bad character generally. See People v. Griffin, 224 P.3d 292, 299-300 (Colo. App. 2009). That same reasoning applies with respect to the letter evidence. It seems exceedingly unlikely that the jury would have found the letter relevant for any purpose other than to demonstrate consciousness of guilt. Third, the sister's testimony was brief and the conduct she described was not more serious than the charged conduct. See Underwood, 53 P.3d at 771. And fourth, the evidence of guilt was strong. In addition to K.P.’s testimony, which was fairly supported in some respects by the expert's testimony, the prosecution presented evidence that Aquiles-Castillo had sexually abused another stepdaughter and had tampered with a witness in an effort to avoid prosecution.

¶ 19 In sum, we conclude that the court properly admitted the uncharged misconduct evidence and that the failure to give a limiting instruction does not amount to plain error warranting reversal.

II. Victim Impact Testimony

¶ 20 After K.P. disclosed the abuse to her mother and then to the police, she participated in a forensic interview. At trial, the forensic interviewer, who was also qualified as an expert in the dynamics of child sexual assault, testified that child victims may dress more modestly and may become depressed or suicidal after the sexual assault.

¶ 21 K.P. testified that after Aquiles-Castillo sexually assaulted her, she dressed in baggy clothes to “cover [her] whole body.” She said that she “felt gross,” “was depressed,” and thought that the only way to “get rid of him” was to commit suicide. She made similar statements during the forensic interview that was played for the jury: she told the interviewer that after the assaults, she felt “depressed” and considered suicide.

¶ 22 On appeal, Aquiles-Castillo contends that K.P.’s statements about her emotional response to the assaults should have been excluded as irrelevant “victim impact” evidence. We are not persuaded.

¶ 23 “Victim impact evidence is evidence that relates to ‘the victim's personal characteristics and to the physical, emotional, or social impact of a crime on its victim and the victim's family.’ ” People v. Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010 WY 45, ¶ 22). Victim impact evidence is admissible at trial only when it is “relevant to determining whether the defendant committed the [charged] crime.” Id. at ¶ 33.

¶ 24 In Martinez, the defendant was charged with sexually assaulting a woman who was highly intoxicated. The “case rested on a single factual dispute — whether [the defendant] had known that [the victim] was too intoxicated to consent to sex.” Id. at ¶ 5. The division concluded that the victim impact testimony — that following the assault, the victim missed work, felt depressed, and considered suicide — was irrelevant because it did not tend to prove whether the defendant had acted with the requisite knowledge. Id. at ¶ 40.

¶ 25 But here, the central factual dispute was whether the assault happened at all. Once the expert testified about children's common responses to sexual assault, evidence of K.P.’s behavioral and mood changes was relevant to show that she had been sexually assaulted. See, e.g., People v. Clark, 2015 COA 44, ¶ 17 (evidence is relevant when the evidence makes it more probable that a criminal act occurred); see also Petersen v. State, 326 So. 3d 535, 594-95 (Ala. Crim. App. 2019) (victim impact evidence was admissible at trial because evidence established extent of victim's injuries and was therefore “relevant to a material issue of the guilt phase”) (citation omitted).

¶ 26 Nor was the probative value of the evidence substantially outweighed by the danger of unfair prejudice. The crux of Aquiles-Castillo's argument is that the victim impact testimony was likely to have elicited sympathy for K.P. But exclusion of evidence is not warranted any time the evidence might make a victim seem more sympathetic — after all, much of a child victim's testimony in a sexual assault case is likely to elicit some sympathy from the jury. To warrant exclusion, the evidence must have “an undue tendency ․ to suggest a decision on an improper basis.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002) (citation omitted). We cannot say that K.P.’s brief and somewhat unremarkable testimony about the impacts of the sexual assaults would have led a reasonable jury to base its verdict on improper considerations.

III. “Coaching” Testimony

¶ 27 Next, Aquiles-Castillo contends that the court erred by allowing the forensic interviewer to testify in a way that impermissibly bolstered K.P.’s credibility. We agree that certain testimony was inadmissible, but we discern no plain error. See People v. Pollard, 2013 COA 31M, ¶ 22 (when defendant fails to object to the admission of evidence at trial, plain error standard of review applies).

A. The Expert's Testimony

¶ 28 On direct examination, the forensic interviewer, who also provided generalized expert testimony, testified that she had been trained to recognize signs that a child had been coached in making allegations. That testimony prompted the following exchange:

[PROSECUTOR]: Based on your training and experience, did you have any impressions regarding whether [K.P.] had been coached?

[EXPERT WITNESS]: No. At one point [K.P.] had talked about talking to her mom about coming to [the child advocacy center], so I asked follow-up questions about that conversation with her, and what she told me was that her mom just told her to talk about her experiences that she had and to be honest with me in those experiences.

¶ 29 On cross-examination, defense counsel asked about the coaching testimony, and the expert clarified that she was “not saying that in this particular case [K.P.] wasn't coached,” but rather that she did not see any “flags” during the interview.

¶ 30 On redirect, the expert testified that K.P. had “complete[d] th[e] forensic interview ․ in a manner consistent with a child her age,” meaning that she had used age-appropriate language and provided an age-appropriate level of detail in her “story.”

¶ 31 On recross, defense counsel asked, “ ‘Consistent with her age’ doesn't mean that you necessarily believe she was telling the truth, correct?” The trial court intervened and disallowed the question on the ground that the expert could not comment on the victim's credibility. The trial court then instructed the jurors that it was their job to evaluate each witness's credibility:

I want to remind the jury and instruct the jury that as jurors, you are the sole judges of the credibility of a witness, and you're not to consider any type of expert testimony in terms of whether a witness may have told the truth or not told the truth. That's not proper for an expert to render an opinion on, and no such opinion has been rendered with regard to that in this case.

B. Analysis

¶ 32 Aquiles-Castillo argues that the expert impermissibly vouched for K.P.’s credibility when she opined that K.P. had not been coached and that the manner in which K.P. completed the interview was age appropriate.

¶ 33 A witness may not testify that a child victim told the truth on a particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32. “This rule applies to both direct and indirect implications of a child's truthfulness.” Id.

¶ 34 Therefore, an expert witness may not opine as to whether a child has been coached, because that testimony “constitute[s] conclusions about [the child's] truthfulness in [her] ․ interview[ ].” People v. Bridges, 2014 COA 65, ¶ 16. And contrary to the People's position, we see no meaningful distinction between testimony that a child has not been coached and testimony that a child did not show signs of being coached. As the division in Heredia-Cobos explained, that “subtle distinction” is “likely to be lost on ordinary jurors,” who are likely to glean from either statement that “the interviewer believed the child hadn't been coached.” Heredia-Cobos, ¶ 17. Thus, while the expert did not explicitly say that K.P. told the truth during the interview, her testimony that she did not see any signs of coaching “conveyed the impression that she thought [K.P.] was being truthful.” Id. at ¶ 16.

¶ 35 Admission of the testimony was error, and the error was obvious. See Pollard, ¶ 40 (an error is obvious if it contravenes Colorado case law). But to warrant reversal, the error must also be so prejudicial that it casts serious doubt on the reliability of the judgment. Id. at ¶ 43. The error in admitting the “coaching” testimony does not satisfy that high standard.

¶ 36 First, the expert clarified that she could not say whether K.P. had been coached. Second, during the expert's testimony, the trial court instructed the jury that an expert cannot opine that another witness has told the truth, it emphasized that the expert had not done so, and it reminded the jurors that evaluating the credibility of the witnesses was their job alone. Third, because K.P. testified and her forensic interview was admitted, the jury could evaluate her credibility “firsthand.” People in Interest of J.R., 2021 COA 81, ¶ 36 (citation omitted) (error in admitting expert testimony bolstering child witness's credibility was mitigated because the jury could evaluate the child's credibility for itself). Fourth, the prosecution did not mention the expert's coaching testimony again during the trial. See People v. Relaford, 2016 COA 99, ¶ 43 (whether improper admission of expert testimony constitutes plain error depends in substantial part on whether the prosecution relied on that testimony in closing arguments). And finally, as we have noted, the evidence of guilt was strong. Id.

¶ 37 We reach a slightly different conclusion with respect to the expert's testimony that K.P. told her “story” in an age-appropriate manner. Aquiles-Castillo does not cite to any Colorado case that disapproves of such testimony and our research has not uncovered one. Other courts permit some variation of this testimony. See United States v. Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (court properly admitted expert testimony that a child's use of age-appropriate language is relevant in determining whether the child has been sexually abused); State v. Huffman, 871 N.W.2d 703, 2015 WL 5278980, at *6 (Iowa Ct. App. Sept. 10, 2015) (unpublished table decision) (trial court properly admitted expert testimony that the child victims used “developmentally appropriate language” in describing the allegations); State v. Lupoli, 234 P.3d 117, 125 (Or. 2010) (testimony that “what [the victim] said was developmentally appropriate for her age is the kind of expert opinion that can assist a jury and ordinarily would be admissible”). Even assuming the testimony was inadmissible, any error in admitting it was not obvious. Therefore, any error was not plain. See Griffin, 224 P.3d at 299 (if error is not obvious, it is not plain, regardless of whether it was prejudicial).

¶ 38 For these reasons, we conclude that the trial court did not plainly err by admitting the challenged testimony.

IV. Prosecutorial Misconduct

A. Standard of Review

¶ 39 We evaluate prosecutorial misconduct claims under the familiar two-step framework: we determine first whether the challenged conduct was improper and second whether any misconduct warrants reversal under the applicable standard of review. See Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). Because defense counsel did not object to any of the challenged conduct, we review for plain error. Id.

B. Opening Statement

¶ 40 During opening statement, the prosecutor repeatedly referred to K.P. as a “little girl” — for example, by telling the jury that she had been keeping secrets in “her little girl heart” for many years about how Aquiles-Castillo had “violate[d] her little girl body” through the acts of sexual abuse. The prosecutor then highlighted the difference between K.P.’s status as a young child and Aquiles-Castillo's status as a grown man, commenting that during one incident, Aquiles-Castillo “put his grown-up man fingers on and around her eight-year-old vagina when [K.P.] was sleeping,” and during the other incident, put his “big adult man hand ․ around her little ten-year-old hand” on his penis and “mov[ed] her little girl hand up and down.”

¶ 41 Aquiles-Castillo contends that the “only possible purpose” for the statements was to “inflame the passions of the jury” and elicit sympathy for K.P.

¶ 42 Prosecutors may not use tactics “calculated to inflame the passions or prejudice of the jury.” People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999). However, a prosecutor may use a rhetorical device or oratorical embellishment to highlight evidence that will later be adduced at trial. See People v. Manyik, 2016 COA 42, ¶¶ 26-27.

¶ 43 We cannot say that the prosecutor's comments constituted misconduct. Given that K.P. was sixteen years old at the time of trial, the prosecutor could legitimately remind the jury that the sexual abuse occurred when she was much younger. Her young age also helped to explain why she had not disclosed the abuse until later. See People v. Vialpando, 2022 CO 28, ¶ 21 (whether prosecutor's comments constitute misconduct depends on the language used, the nature of the charges and asserted defenses, and the issues to be determined). And while some of the prosecutor's language may have been overly dramatic, it largely mirrored language K.P. herself used to describe the abuse — for example, she testified that she was “sure [Aquiles-Castillo] was touching [her]” because she recalled that his hands “were just, like, thick and heavy, like man hands.” In this way, the prosecutor's comments merely foreshadowed the evidence.

¶ 44 But we agree that the prosecutor briefly crossed the line at the end of her opening statement when she told the jurors that by returning a guilty verdict, they would “do[ ] justice in this courtroom for [K.P.] and for the people of Colorado.” “Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim.” People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009). But even assuming the misconduct was obvious, the single comment did not render the trial fundamentally unfair. See, e.g., People v. Conyac, 2014 COA 8M, ¶¶ 129-130 (prosecutor's request to do “justice for [the victim]” did not constitute plain error); People v. Ujaama, 2012 COA 36, ¶¶ 73-74 (prosecutor's comment that the “only way to obtain justice in this courtroom ․ is to find [defendant] guilty” did not amount to plain error); see also People v. Carian, 2017 COA 106, ¶ 58 (improper comments during opening statement did not constitute plain error because they were “fleeting relative to the argument as a whole and in light of all the evidence the jury heard after opening statements”).

C. K.P.’s Testimony

¶ 45 At the beginning of her testimony, K.P. started to cry. The prosecutor approached the witness stand, offered some encouraging words, and then made a tapping gesture on K.P.’s forehead. A few minutes later, defense counsel objected to the prosecutor's leading questions and to her earlier gesture and asked the court to order the prosecutor to “knock all that off.” The trial court agreed that the “touch on the forehead was inappropriate” and admonished the prosecutor “to refrain from doing anything like that again.” Defense counsel did not seek any further relief.

¶ 46 Shortly thereafter, the prosecutor acknowledged K.P.’s nervousness and asked her, “[W]hat did I tell you you needed to do today — the only thing you needed to do?” K.P. replied, “Say the truth.”

¶ 47 Aquiles-Castillo now argues that he is entitled to a new trial based on the prosecutor's improper “bonding” gesture. But he has waived that argument because he objected to the misconduct, the court effectively sustained the objection, and he obtained all the relief he requested. See People v. Manzanares, 2020 COA 140M, ¶ 16 (defendant waived claim where counsel objected to the error, “agreed to the trial court's curative procedure and requested nothing further”); People v. Douglas, 2012 COA 57, ¶ 65 (defendant waived claim of prosecutorial misconduct where he objected to the comments, the trial court sustained the objection, and he requested no further relief).

¶ 48 As for the prosecutor's question eliciting K.P.’s testimony that she had agreed to tell the truth, we see no impropriety. The question “merely elicited testimony from the victim about the truthfulness of her own testimony, which does not constitute bolstering.” People v. West, 2019 COA 131, ¶ 42.

D. Closing Argument

¶ 49 During closing argument, the prosecutor said that Aquiles-Castillo had treated K.P. and her sister “like garbage,” “like animals,” and “like pieces of meat.” The prosecutor told the jury that he had written down the word “predator,” and although he did not know whether the word was “entirely accurate,” Aquiles-Castillo had “certainly behav[ed] in a terrible, terrible way.”

¶ 50 Later, the prosecutor argued that Aquiles-Castillo was “guilty” of the crimes, and that the jury should return a guilty verdict “because [Aquiles-Castillo] did it” — the sexual assault “happened here in Colorado,” and “it happened before that in California.”

¶ 51 Aquiles-Castillo contends that the prosecutor engaged in improper name-calling and expressed his personal belief in Aquiles-Castillo's guilt.

¶ 52 True, prosecutors should avoid “ ‘pejoratives’ that amount to no more than ‘name calling.’ ” McBride, 228 P.3d at 222 (citation omitted). But with the exception of his use of the term “predator,” the prosecutor did not call Aquiles-Castillo any names; rather, he used harsh language to describe Aquiles-Castillo's treatment of his stepdaughters. Even assuming these comments were improper, they were not flagrantly, glaringly, or tremendously so. See People v. Rhea, 2014 COA 60, ¶ 43; see also United States v. Rodriguez-Estrada, 877 F.2d 153, 159 (1st Cir. 1989) (A criminal trial “is not a tea party,” and a defendant is not entitled to a “prosecutorial summing-up confined to platitudes and euphemisms.”) (citation omitted). The prosecutor's point was that Aquiles-Castillo had grossly mistreated the sisters, a conclusion that the evidence supported. His use of over-the-top language in a couple of sentences to make that point was unlikely to have affected the verdict, much less cast serious doubt on its reliability. See Hagos v. People, 2012 CO 63, ¶ 14.

¶ 53 We perceive nothing improper about the prosecutor's other comments, though. A prosecutor may not offer a personal opinion about the defendant's guilt. Vialpando, ¶ 42. But in context, it is clear that the prosecutor was not expressing his personal opinion that Aquiles-Castillo was guilty. He was arguing, in perhaps an inartful way, that the evidence demonstrated that Aquiles-Castillo was guilty. The challenged comments were interspersed in the prosecutor's recitation of the evidence and his explanation as to why the evidence was credible. But even if the remarks were ambiguous, we must give the prosecutor the benefit of the doubt. See McBride, 228 P.3d at 221.

¶ 54 Accordingly, even assuming the prosecutor twice made improper comments, the misconduct does not warrant reversal of Aquiles-Castillo's convictions.

V. Cumulative Error

¶ 55 Under the cumulative error doctrine, “numerous formal irregularities, each of which in itself might be deemed harmless, may in the aggregate show the absence of a fair trial, in which event a reversal would be required.” Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446 (1962).

¶ 56 We reject Aquiles-Castillo's argument that his conviction must be reversed based on cumulative error. “For reversal to occur based on cumulative error, a reviewing court must identify multiple errors that collectively prejudice[d]” the defendant's substantial rights. Howard-Walker v. People, 2019 CO 69, ¶ 25.

¶ 57 Though we have identified and assumed a few errors, these errors, even in combination, did not prejudice Aquiles-Castillo's substantial rights, render the trial fundamentally unfair, or undermine the integrity of the factfinding process. See id. at ¶ 24.

VI. Double Jeopardy

¶ 58 Aquiles-Castillo was charged with and convicted of one count of SAOC-POT and one count of SAOC-POT-Pattern. The prosecution concedes that both counts refer to the same offense, with the pattern count serving solely as a sentence enhancer. See People v. Simon, 266 P.3d 1099, 1108 (Colo. 2011) (explaining that SAOC-POT-Pattern is a sentence enhancer, not an offense). Because “[t]rial courts may not enter a separate conviction or sentence on a count that is only a sentence enhancer,” we agree with the parties that Aquiles-Castillo's judgment of conviction for SAOC-POT-Pattern must be vacated. People v. Torrez, 2013 COA 37, ¶ 23; see also People v. Wiseman, 2017 COA 49M, ¶¶ 9-14 (concluding that where defendant was charged with two counts of SAOC-POT and two counts of SAOC-POT-Pattern, the defendant could only be convicted of the two SAOC-POT offenses with the pattern charges serving as sentence enhancers).

VII. Disposition

¶ 59 The judgment as to SAOC-POT (a class 3 felony) is affirmed. The conviction and sentence for SAOC-POT-Pattern is vacated, and the case is remanded with instructions to correct the mittimus.

JUDGE GROVE and JUDGE KUHN concur.

FOOTNOTES

1.   In a petition for rehearing filed after our opinion issued, Aquiles-Castillo claimed that because the People had argued that the letter evidence was admissible as intrinsic evidence, our conclusion that it was admissible as extrinsic evidence under CRE 404(b) violated the party presentation principle.Under the principle of party presentation, courts “rely on the parties to frame the issues for decision.” United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 1579 (2020). Therefore, courts should generally “decide only questions presented by the parties.” Galvan v. People, 2020 CO 82, ¶ 45 (quoting Sineneng-Smith, 590 U.S. at ___, 140 S. Ct. at 1579).Here, we did not decide a question not presented by the parties; we decided the question Aquiles-Castillo asked us to resolve. In his opening brief, Aquiles-Castillo argued that the trial court erred because admissibility of the letter evidence should have been analyzed under CRE 404(b) and that, so analyzed, the evidence was inadmissible. We accepted his premise, reviewed the issue as raised by him, and concluded that he was wrong. Under these circumstances, there has been no departure from the party presentation principle.

2.   We also disagree that by reviewing for plain error, we have again run afoul of the party presentation principle. According to Aquiles-Castillo's petition for rehearing, we may not consider whether the court's failure to give a limiting instruction amounted to plain error because the People never argued that it did.As an initial matter, we note that the People did argue that “a trial court's failure to give a limiting instruction sua sponte in the CRE 404(b) context is not reversible plain error” and cited a number of cases supporting that proposition.But also, it was Aquiles-Castillo's burden to demonstrate that any error was plain. See People v. Carter, 2021 COA 29, ¶ 49. And Aquiles-Castillo has not cited any case that authorizes us to shift that burden to the People. Cf. James v. People, 2018 CO 72, ¶¶ 17-18 (explaining that the defendant has the burden to show that an error is plain whereas the government has the burden to show that an error is harmless). His reliance on People v. Jackson, 2020 CO 75, and Moody v. People, 159 P.3d 611 (Colo. 2007), is misplaced. In Jackson, the People did not contest that a double jeopardy violation would amount to plain error, an omission the supreme court construed as an “implicit concession.” Jackson, ¶ 60. Nonetheless, the supreme court “independently” determined that the error was plain. Id. at ¶ 61. And in Moody, the supreme court disapproved of the division's decision to address standing sua sponte because — as a result of the government's failure to raise standing “in the suppression hearing, at trial, or on appeal” — the defendant had no notice that he needed to create a sufficient factual record on that issue. Moody, 159 P.3d at 614, 616. Neither notice nor a deficient record is at issue here. In sum, our role on plain error review requires us to independently determine whether any error was obvious and so substantial that it undermined the reliability of the judgment. See Hagos v. People, 2012 CO 63, ¶ 14.

Opinion by JUDGE HARRIS

Grove and Kuhn, JJ., concur JUDGE GROVE and JUDGE KUHN concur.